» lawyers, Trial » Gotcha!

Gotcha!

When I was in law school, I was fortunate to attend many hours of public defender training. I can still clearly remember the cross-examination teacher describing his technique for impeaching a witness. He recommended something called “the 3 Cs.” The 3 Cs stood for “commit,” “credit,” and “confront.” I don’t know if it’s his thing or something widely known to trial lawyers, but it’s a pretty solid, general approach to impeachment.

Let’s say you have an officer who’s saying something highly incriminating, something that he didn’t put in his police report. You want to impeach him with that omission. Using the 3 Cs technique the teacher recommended, you’d first commit the officer to his current statement. Make sure the judge or jury understands exactly what he’s saying. Second, you’d credit his police report. Make sure the judge or jury realizes that, if what he’s saying had actually happened, it would’ve ended up in the report. Third, you’d confront the officer with the fact he omitted that essential information from his report.

The last C is the “gotcha” moment. Hand the officer the report and ask him to find the part where he says what he’s now saying. He won’t find it because it isn’t there, and he’ll look bad in the process. Gotcha!

I recently saw the 3 Cs in action. The officer testified that he was the one who found contraband in the car, and the defense lawyer immediately (and very obviously) committed the officer to that statement. “So your testimony today is that you were the person who found the contraband in my client’s car?” “Yes,” the officer replied.

Committed! One C down, two to go. Everyone in the room knew what the defense lawyer was going to do.

The defense lawyer then proceeded to do a great job of crediting the officer’s report. He established that the officer had training on how to write a good report. He’d written hundreds. He was detail-oriented. He prided himself on being thorough. The officer knew the prosecutor relied on the report for charging. He knew the defense lawyer relied on the report in preparing his case. The crediting went on and on.

By the end, the defense lawyer had credited the report as being the be-all, end-all of relevant information in the case. Crediting is always the longest part of impeaching with the 3 Cs, and this time it took forever. I couldn’t wait to see that “gotcha” moment.

The defense lawyer strutted up to the stand, gave the officer the report, and asked him, “can you please show me where in your report you mention that that you were the person who found the contraband in my client’s car?” The room was filled with tension as the officer carefully looked through his report. Everyone waited on the edge of the seat for that moment where the impeachment finally came together, then…

“Page 4, paragraph 2, second sentence,” the officer explained.

The defense lawyer, promptly and with great authority, proceeded to end his cross-examination with flair, proudly declaring “I have no further questions your honor!” as if he’d not just had his ass handed to him.

It was a spectacular facepalm moment. It was riotously funny (except for the defense lawyer and his client, of course) and probably the best “gotcha” moment I’ve ever seen in court. It was just reversed.

Turns out the 3 Cs aren’t so helpful when you haven’t read the police report.

Filed under: lawyers, Trial · Tags: , , , , , ,

3 Responses to "Gotcha!"

  1. Man I could be a lawyer then! I knew that one hehe I wouldn’t know all the technical laws and stuff haha I’d have to have my assistant do all the work. Just send me up when it’s time for the 3 c’s! I’ve studied Jack Mccoy donut enuf times I feel confident I could get my defendant off.

    And I’d be overdramatic and freak out about civil rights. My doper client would be cRried out in celebration!

    Then I give big press conference

    then I’d serve the D.A. a motion to eat it! Hahahah

    law n order is cancelled now though, soninwill only be able to study older caselaw from the repeats!

  2. Matt Brown says:

    I’m inclined to agree with you, not just for your reasons but because committing the witness right before confronting the witness adds the nice touch of being able to contrast the statements because you’re asking about them back-to-back.

  3. Mark Bennett says:

    I regret to inform you (no, I really don’t) that your cross-examination teacher had it wrong.

    If you commit before you credit, you give the cop an opportunity to realize that something is amiss and weasel on the “credit” portion of your cross (which, if you think about it, is the most weaselable part).

    Credit then commit: before you even get into the substance of the cross, build up the cop’s training in writing accurate and complete reports, the importance of accurate and complete reports, and the fact that the reports he wrote (and the reports he reviewed) in this case are accurate and complete.

    Then, when you ask him to confirm that he was the one who found the dope, he’s already stuck with whatever is written in the report being the actual truth.

    Oh, and read the offense report first.

Leave a Reply

*

 

Articles Comments

Web Design by Actualize Solutions